Line concierge terms
Effective: September 13, 2019
SaF Line Concierge Terms
This Line Concierge Agreement (“Agreement”) is made and entered into by and between you, the natural person accepting the terms of this Agreement ("Contractor"), an independent contractor engaged in the business of performing the wait-list and wait-line services contemplated by this Agreement, and SaF, Inc. (“SaF”). This Agreement will become effective on the date it is accepted by Contractor regardless of whether Contractor becomes eligible to perform any Concierge Services.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. THIS AGREEMENT INCLUDES AN ARBITRATION AGREEMENT IN SECTION 10, UNLESS YOU OPT OUT OF ARBITRATION AS PROVIDED BELOW, WHICH REQUIRES THE PARTIES, TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS, TO THE FULLEST EXTENT PERMITTED BY LAW, THROUGH FINAL AND BINDING ARBITRATION.
Contractor represents and warrants Contractor has reviewed and agrees to the Line Concierge Privacy Notice, available at www.thesafapp.com/line-concierge-privacy
and that such Privacy Notice will apply to Contractor for matters arising out of this Agreement.
A. Company provides an online marketplace (“SaF Platform”) that connects contractors with consumers seeking wait-list and wait-line services (“Concierge Services”) at venues, restaurants or other establishments or businesses (each a “Venue”). Once a request is made by a consumer for Concierge Services, Company software notifies SaF’s contractors that a Concierge Service opportunity is available and the Company software facilitates the transaction for Concierge Services at the specified Venue between the consumer and the applicable contractor.
B. Contractor is an independent provider of Concierge Services and possesses all equipment and resources necessary to perform the services contemplated by this Agreement in accordance with all applicable laws. Contractor desires to enter into this Agreement for the right to receive Concierge Service opportunities made available through the SaF Platform.
C. Contractor understands and expressly agrees that Contractor is not an employee of Company or any Venue or consumer and that he/she is providing delivery services on behalf of him/herself, not on behalf of Company. Contractor agrees that (i) Contractor is free to select those times Contractor wishes to be available on the SaF Platform to receive Concierge Service opportunities; (ii) Contractor is free to accept or reject the opportunities transmitted through the SaF Platform by consumers; (iii) Contractor has the sole right to control the manner in which Concierge Service are performed and the means by which those services are completed; and (iv) Contractor is under no obligation to wear any SaF identifying logos, badges or clothing in performing the Concierge Services.
In consideration of the above, as well as the mutual promises described herein, Company and Contractor further agree as follows:
1.1. Contractor shall have the right and obligation to perform the Concierge Services as described herein, provided nothing in this Agreement requires Contractor to perform any particular volume of Concierge Services during the term of this Agreement, and nothing in this Agreement shall guarantee Contractor any particular volume of business for any particular time period.
1.2. Contractor shall have no obligation to accept or perform any particular available via the SaF Platform. That said, upon Contractor’s acceptance of an opportunity, Contractor shall be contractually bound to complete the Concierge Services in accordance with all consumer specifications and the terms laid out in this Agreement.
2.1. Contractor represents that Contractor operates independently to provide wait-list and wait-line services, and that Contractor satisfies all legal requirements necessary to perform the services contemplated by this Agreement. As an independent contractor. Contractor shall be solely responsible for determining how to operate Contractor’s business and how to perform the accepted Concierge Services.
2.2. Contractor agrees to fully perform the accepted Concierge Services in a timely, efficient, safe, and lawful manner. Company shall have no right to, and shall not, control the manner, method or means Contractor uses to perform the Concierge Services.
2.3. The parties agree that they are or may be engaged in similar arrangements with others and nothing in this Agreement shall prevent Contractor or Company from doing business with others. Company does not have the right to restrict Contractor from performing services for other businesses, customers or consumers at any time, even if such business directly competes with Company, and even during the time Contractor is logged into the Company platform. Contractor’s right to compete with Company, or perform services for business that compete with Company, will survive even after termination of this Agreement.
2.4. Contractor is not required to purchase, lease, or rent any products, equipment or services from Company as a condition of doing business with Company or entering into this Agreement.
3. Concierge Services
3.1. Contractor understands and agrees that the parameters of each accepted Concierge Service are established by the consumer, not Company, and represent the end result desired, not the means by which Contractor is to accomplish the result. Contractor has the right to cancel, from time to time, an accepted Concierge Service when, in Contractor’s reasonable discretion and business judgment, it is appropriate to do so. Notwithstanding the foregoing, Contractor agrees not to cancel more three (3) or more accepted Concierge Services without Company’s prior approval. Failure to satisfy this obligation constitutes a material breach of this Agreement, and Company shall have the right to terminate this Agreement and/or deactivate Contractor’s account for the SaF Platform.
3.2. Contractor acknowledges that Contractor is engaged in Contractor’s own business, separate and apart from Company’s business.
3.3. Contractor authorizes Company, during the course of accepted Concierge Services, to communicate with Contractor, consumer, and/or Venue to assist Contractor, to the extent permitted by Contractor, in facilitating Concierge Services. However, under no circumstances shall Company be authorized to control the manner or means by which Contractor performs its services. This includes, but is not limited to, the following:
(a) Contractor does not have a supervisor or any individual at Company to whom they report.
(b) Contractor is not required to use any signage or other designation of Company on Contractor’s person at any point in their use of the SaF Platform to perform Concierge Services.
(c) Company has no control over Contractor’s personal appearance
(d) Contractor does not receive regular performance evaluations by Company
3.4. In the event Contractor fails to fully perform any accepted Concierge Services (a “Failure”) due to Contractor’s action or omission, Contractor shall forfeit all or part of the agreed upon fee for that service. If Contractor disputes responsibility for a Failure, the dispute shall be resolved pursuant Section 6 (Payment Disputes).
4. Relationship of the Parties
4.1. The parties acknowledge and agree that this Agreement is between two co-equal, independent business enterprises that are separately owned and operated. The parties intend this Agreement to create the relationship of principal and independent contractor and not that of employer and employee. The parties are not employees, agents, joint venturers, or partners of each other for any purpose. Neither party shall have the right to bind the other by contract or otherwise except as specifically provided in this Agreement.
4.2. Company shall not have the right to, and shall not, control the manner or the method of accomplishing Concierge Services to be performed by Contractor. The parties acknowledge and agree that those provisions of the Agreement reserving ultimate authority in Company have been inserted solely for the safety of consumers and other contractors using the Company platform or to achieve compliance with federal, state, or local laws, regulations, and interpretations thereof.
4.3. Company shall report all payments made to Contractor on a calendar year basis using an appropriate IRS Form 1099, if the volume of payments to Contractor qualify. Contractor agrees to report all such payments and any cash gratuities to the appropriate federal, state and local taxing authorities.
5. Payment; Expenses
5.1. Unless notified otherwise by Company in writing or except as provided herein, Contractor will receive payment in accordance with publicly available terms found at www.thesafapp.com/line-concierges.
5.2. Company’s online credit card software may permit consumers to add a gratuity to be paid to Contractor, and consumers can also pay a gratuity to Contractor in cash. Contractor shall retain 100% of any gratuity paid by the consumer, whether by cash or credit card. Company acknowledges it has no right to interfere with the amount of gratuity given by the consumer to the Contractor.
5.3. Company will process payments made by consumers and transmit to Contractor. Payments for all Concierge Services completed will be transferred via ACH credit transfer, or domestic wire, or credit card/debit card.
5.4. Contractor agrees that Contractor is responsible for all costs and expenses arising from Contractor’s performance of Concierge Services.
6. Payment Disputes
6.1. In the event of a Failure, Contractor shall not be entitled to payment as described above (as determined in Company’s reasonable discretion). Any withholding of payment shall be based upon proof provided by the consumer, Contractor, and any other party with information relevant to the dispute. Company shall make the initial determination as to whether a Failure was the result of Contractor’s action/omission. Contractor shall have the right to challenge Company’s determination through any legal means contemplated by this Agreement; however, Contractor shall notify Company in writing of the challenge and provide Company the opportunity to resolve the dispute. Contractor should include any documents or other information in support of his/her challenge.
6.2. In the event Company fails to remit payment in a timely or accurate manner, Contractor shall have the right to seek proper payment by any legal means contemplated by this Agreement and, should Contractor prevail, shall be entitled to recover reasonable costs incurred in pursuing proper payment, provided, however, Contractor shall first inform Company in writing of the failure and provide a reasonable opportunity to cure it.
7. Background Checks; Insurance
7.1. In order to perform any Concierge Services, Contractor must, for the safety of consumers on the SaF Platform, pass a background check administered by a third-party vendor, subject to Contractor’s lawful consent.
7.2. Contractor agrees that Contractor will maintain sufficient insurance to cover any risks or claims arising out of or related to Contractor’s relationship with SaF, including any applicable insurance where required by law. Contractor acknowledges and understands that Contractor will not be eligible for workers’ compensation benefits through Company and is instead responsible for maintaining Contractor’s own workers’ compensation insurance or occupational accident insurance.
8. Term; Termination
8.1. This Agreement commences on the date of Contractor’s acceptance hereof and continues thereafter until terminated in accordance with the terms of this Agreement.
8.2. Contractor may terminate this Agreement upon seven (7) days written notice to Company. Company may immediately terminate this Agreement and deactivate Contractor’s account in the event: (a) Contractor violates the terms of this Agreement; (b) Contractor engages in violent or harassing behavior; (c) Contractor engages in deceptive, misleading, or unethical practices; or (d) Contractor makes any representations, warranties, or guarantees on behalf of the Company.
8.3. Contractor’s and Company’s obligations and rights arising under the arbitration agreement set forth above shall survive termination of this Agreement.
Contractor agrees to indemnify, protect and hold harmless Company, including all parent, subsidiary and/or affiliated companies, as well as its and their past and present successors, assigns, officers, owners, directors, agents, representatives, attorneys, and employees, from any and all claims, demands, damages, suits, losses, liabilities and causes of action arising directly or indirectly from, as a result of or in connection with, the actions of Contractor arising from (a) the performance of services under this Agreement, including personal injury or death to any person (including to Contractor), (b) Contractor’s failure to comply with the terms of this Agreement, (c) any and all tax liabilities and responsibilities for payment of all federal, state and local taxes, including, but not limited to all payroll taxes, self-employment taxes, workers compensation premiums, and any contributions imposed or required under federal, state and local laws, with respect to Contractor, and (d) all costs of Contractor’s business, including, but not limited to, the expense and responsibility for any and all applicable insurance, local, state or federal licenses, permits, taxes, and assessments of any and all regulatory agencies, boards or municipalities.
10. Arbitration Agreement
10.1. Contractor and Company mutually agree to this arbitration agreement, which is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) ("FAA") and shall apply to any and all claims arising out of or relating to this Agreement, Contractor’s classification as an independent contractor, Contractor’s provision of Concierge Services to consumers, the payments received by Contractor for providing services to consumers, the termination of this Agreement, and all other aspects of Contractor’s relationship with Company, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Civil Rights Act of 1964 (or its state or local equivalents), Americans With Disabilities Act (or its state or local equivalents), Age Discrimination in Employment Act (or its state or local equivalents), Family Medical Leave Act (or its state or local equivalents), Federal Credit Reporting Act (or its state or local equivalents), or Fair Labor Standards Act (or its state or local equivalents), state and local wage and hour laws, state and local statutes or regulations addressing the same or similar subject matters, and all other federal, state or local claims arising out of or relating to Contractor’s relationship or the termination of that relationship with Company. The parties expressly agree that this Agreement shall be governed by the FAA even in the event Contractor and/or Company are otherwise exempted from the FAA. Any disputes in this regard shall be resolved exclusively by an arbitrator. In the event, but only in the event, the arbitrator determines the FAA does not apply, the state law governing arbitration agreements in the state in which the Contractor operates shall apply.
10.2. Arbitration Class Action Waiver. Contractor and Company mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action, or to award relief to anyone but the individual in arbitration ("Arbitration Class Action Waiver"). Notwithstanding any other clause contained in this Agreement or the AAA Rules, as defined below, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (a) the dispute is filed as a class, collective, or representative action and (b) there is a final judicial determination that all or part of the Arbitration Class Action Waiver is unenforceable, the class, collective and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Arbitration Class Action Waiver that is enforceable shall be enforced in arbitration. Notwithstanding any other clause contained in this Agreement or the AAA Rules, as defined below, any claim that all or part of this Arbitration Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. All other disputes with respect to whether this arbitration agreement is unenforceable, unconscionable, applicable, valid, void or voidable shall be determined exclusively by an arbitrator, and not by any court.
10.3. Contractor agrees and acknowledges that entering into this arbitration agreement does not change Contractor’s status as an independent contractor in fact and in law, that Contractor is not an employee of Company or its customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
10.4. Any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules ("AAA Rules"), except as follows:
(a) The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The Arbitrator shall be an attorney with experience in the law underlying the dispute.
(b) If the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within 45 miles of Contractor’s residence as of the effective date of this Agreement.
(c) Unless applicable law provides otherwise, in the event that Company and Contractor have agreed to this arbitration agreement, Company and Contractor shall equally share filing fees and other similar and usual administrative costs, as are common to both court and administrative proceedings. Company shall pay any costs uniquely associated with arbitration, such as payment of the costs of AAA and the Arbitrator, as well as room rental.
(d) The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
(e) Except as provided in this arbitration agreement, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
(f) The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
(g) The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law.
(h) The Arbitrator may issue orders to protect the confidentiality of proprietary information, trade secrets, or other sensitive information. Subject to the discretion of the Arbitrator or agreement of the parties, any person having a direct interest in the arbitration may attend the arbitration hearing. The Arbitrator may exclude any non-party from any part of the hearing.
(i) Either Contractor or Company may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
10.5. Nothing in this arbitration agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, U.S. Securities and Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs. Disputes between the parties that may not be subject to a pre-dispute arbitration agreement, including as provided by an Act of Congress or lawful, enforceable Executive Order, are excluded from the coverage of this arbitration agreement.
10.6. Arbitration is not a mandatory condition of Contractor’s contractual relationship with Company. Contractor may submit a statement notifying Company that Contractor wishes to opt out and not be subject to this arbitration agreement.
10.7. In order to opt out, Contractor must notify Company in writing of Contractor’s intention to opt out by sending a letter, by First Class Mail, to SaF, Inc., PO Box 29021, Portland, OR 97296. Any attempt to opt out by email will be ineffective. The letter must state Contractor’s intention to opt out. In order to be effective, Contractor’s opt out letter must be postmarked within 30 days of the effective date of this Agreement. The letter must be signed by Contractor himself/herself, and not by any agent or representative of Contractor. If Contractor opts out as provided in this Section, Contractor will not be subject to any adverse action from Company as a consequence of that decision and he/she may pursue available legal remedies without regard to this arbitration agreement. If Contractor does not opt out within 30 days of the effective date of this Agreement, Contractor and Company shall be deemed to have agreed to this arbitration agreement. For the avoidance of doubt, Contractor has the right to consult with counsel of Contractor’s choice concerning this arbitration agreement (or any other provision of this Agreement).
10.8. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. The award issued by the Arbitrator may be entered in any court of competent jurisdiction.
11. Litigation Class Action Waiver
To the extent allowed by applicable law, separate and apart from the arbitration agreement set forth in Section 10, Contractor agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Contractor opted out of the arbitration agreement or any other reason, will be conducted solely on an individual basis, and Contractor agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Contractor acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Contractor further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
12. Exclusion of Damages
SAF SHALL NOT BE LIABLE TO CONTRACTOR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM CONTRACTOR’S PERFORMANCE OF THE CONCIERGE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SAF, EVEN IF SAF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. General Terms
13.1. Except for the arbitration agreement above, which is governed by the Federal Arbitration Act, the choice of law for interpretation of this Agreement, and the right of the parties hereunder, as well as substantive interpretation of claims asserted pursuant to Section 10, shall be the rules of law of the state in which Contractor performs the majority of the services covered by this Agreement.
13.2. Section headings and sub-headings appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
13.3. This Agreement shall constitute the entire agreement and understanding between the parties with respect to the subject matter of this Agreement and shall not be modified, altered, changed or amended in any respect, unless in writing and signed by both parties. This Agreement supersedes any prior contract between the parties.
13.4. To the extent Company’s Terms of Service (as such may be modified from time to time) are inconsistent or conflicts with this Agreement, this Agreement shall control.
13.5. This Agreement may not be assigned by either party without written consent of the other and shall be binding upon the parties hereto, including their heirs and successors, provided, however, that Company may assign its rights and obligations under this Agreement to an affiliate of Company or any successor(s) to its business and/or purchaser of substantially all of its stock or assets.
13.6. The failure of Company or Contractor in any instance to insist upon a strict performance of the terms of this Agreement or to exercise any option herein, shall not be construed as a waiver or relinquishment of such term or option and such term or option shall continue in full force and effect. Except as specifically provided in Section 10, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.